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Supreme Court asks Biden administration to weigh in on social media case

Laws in Florida and Texas ban social media companies from removing users because of political speech, setting up a major test of the First Amendment

Twitter headquarters in San Francisco. (David Paul Morris/Bloomberg News)

The Supreme Court on Monday asked the Biden administration to weigh in on whether states may bar giant social media platforms from removing certain types of political speech, a major First Amendment case that could determine how the constitutional right to free speech applies to the marketplace of ideas on the internet.

The request for the views of the solicitor general will delay a decision on whether the high court takes up the issue. At stake is the constitutionality of state laws in Florida and Texas that would restrict platforms such as Facebook, Twitter and YouTube from blocking or limiting political speech, and require transparency in how such decisions are made.

Both laws were championed by Republican lawmakers who charged that Silicon Valley companies are unlawfully censoring conservative viewpoints, a view that gained momentum on the right after major social media sites suspended Donald Trump following the Jan. 6, 2021, assault on the U.S. Capitol.

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The court’s decision could have wide-ranging effects on the future of democracy and elections, as tech companies play an increasingly significant role in disseminating news and discussion about politics. The companies say restricting their ability to moderate content could lead to an onslaught of hate speech, misinformation and other violent material.

It seems likely the Supreme Court will need to address the issue, perhaps in its term that starts in October. Federal appeals courts have issued conflicting rulings: The U.S. Court of Appeals for the 11th Circuit struck down much of Florida’s law while the U.S. Court of Appeals for the 5th Circuit upheld Texas’s law.

Both the states and the tech industry told the Supreme Court justices that only the high court could decide the rules going forward, and urged them to take up the cases.

Until the decision in the 5th Circuit, the tech trade association NetChoice told the court, “no judicial opinion in our Nation’s history had held that the First Amendment permits government to compel websites to publish and disseminate speech against their will. If allowed to stand, the Fifth Circuit’s opinion will upend settled First Amendment jurisprudence and threaten to transform speech on the Internet as we know it today.”

Texas’s response portrayed the case as equally crucial. “A small number of modern communications platforms effectively control access to the modern, digital public square,” Texas Attorney General Ken Paxton (R) wrote in his Supreme Court petition. They are claiming “an absolute First Amendment right to exclude … anyone they want for any reason they want without explanation.”

The last surviving part of the Telecommunications Act of 1996, which provides companies legal cover to host others' content, could be coming to an end. (Video: Jonathan Baran/The Washington Post)

The cases set up the most consequential test of assertions that Silicon Valley companies are unlawfully censoring conservative viewpoints.

Matt Schruers, president of the Computer & Communications Industry Association, said the court’s request for the views of the Biden administration “underscores the importance of these cases. It is crucial that the Supreme Court ultimately resolve this matter.”

The court already has scheduled two important tech cases for next month. Gonzalez v. Google, to be argued on Feb. 21, is the court’s first full consideration of whether the legal provision known as Section 230 shields tech companies from claims that their algorithmic recommendations of content can cause harm. In the lawsuit, the family of an American killed in Paris by an attack by followers of the Islamic State claims that the assailants may have been influenced by YouTube recommendations that they say supported terrorism.

The next day the justices will consider Twitter v. Taamneh, which poses a related question about the responsibility of monitoring for posts that support terrorism.

In the Florida and Texas cases, the contrasting lower court opinions were both written by conservative judges nominated by Trump.

In the 11th Circuit opinion blocking much of Florida’s law, Judge Kevin Newsom criticized a depiction of social media platforms as “dumb pipes … reflexively transmitting data from point A to point B.” Instead, he wrote, their “content-moderation decisions constitute the same sort of editorial judgments” entitled to First Amendment protections when made by a newspaper.

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In the Texas case, Judge Andrew Oldham said the tech companies’ claim of First Amendment protection had things backward. “That Amendment, of course, protects every person’s right to ‘the freedom of speech,’” Oldham wrote. “But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

The split — and the agreement of both the states and the tech companies that the Supreme Court needed to step in — almost ensures the justices’ intervention.

Three of them made their interest in the case clear earlier, when the Supreme Court agreed to keep the Texas law from taking effect while legal challenges continued.

Justice Samuel A. Alito Jr. said the issue “will plainly merit this court’s review.”

“Social media platforms have transformed the way people communicate with each other and obtain news,” wrote Alito, who was joined by colleagues Clarence Thomas and Neil M. Gorsuch. “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Will Oremus contributed to this report.

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